Chandigarh

DF-I

CC/430/2020

Rajbir Kaur - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension developers Pvt. Ltd. - Opp.Party(s)

Gaurav Bhardwaj

07 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/430/2020
Date of Institution	:	6/10/2020
Date of Decision	:	7/2/2024

 

Rajbir Kaur, W/o S.Tejinder Singh Bajwa, R/o #2133, Sector-27-C. Chandigarh.

 

......Complainant

 

VERSUS

 

M/s OMAXE Chandigarh Extension developers Pvt.Ltd, India Trade Tower, First Floor, New Chandigarh. Mullanpur District Mohalli-140901, through its Managing Director/Authorised Signatory.

....Opposite Party

ORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR SURESH KUMAR SARDANA	MEMBER MEMBER

                       

ARGUED BY	:	Sh. Gaurav Bhardwaj, Advocate for complainant alongwith S. Tejinder Singh Bajwa husband of complainant.
	:	Sh. Manjinder Kumar, Advocate for OP.

Per surjeet kaur, Member

     Briefly stated the complainant is a retired Government employee and residing in Government accommodation at Chandigarh and she booked a flat with the OP as she was to retire in April 2020 and she wanted to have an accommodation near chandigarh.

 

The complainant booked the flat in the scheme floated by the O.P ie 'Celestia Grand'. The complainant had paid Rs.3,00,000/- at the time of booking on 30.06.2016  and the complainant was provided a customer ID CGC/158 and flat no.CGC/First/26621 was also provided to her, the provisional allotment was made on 17.10.2016 but copy of the same was not provided to the complainant. The complainant was promised that the possession of the flat shall be handed over to her by early 2020. The complainant paid an amount of Rs.12,93,186 to the Ops till 16.5.2017. But  subsequently on the request  of the complainant the OP allotted flat No.RNC/Tower-4/second/202  in place of earlier flat on 7.2.2018 and for which the complainant paid additional amount of Rs.1,00,000/- to the OP. It is alleged that the OPs failed to hand over the possession of the flat in question within stipulated period despite repeated requests and  as such the complainant requested for the refund of the deposited amount. Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2. The Opposite Party in its reply stated that the complaint deserves to be dismissed, as the complainant has concealed material facts from this  Commission. It is stated that the complainant has intentionally not placed on record complete documents and even has suppressed the relevant facts from this Commission. It is stated that the complainant never had appropriate funds. However, it appears that she has been trying her luck by booking various properties and then shifting funds of one property to another. Originally, the complainant alongwith her husband namely Tejinder Singh Bajwa, booked a flat in the project (namely "Celestia Grand") of the OP and deposited Rs. 3 lacs on 30.06.2016. Later, vide Relinquishment Deed dated 25.04.2017, said Tejinder Singh Bajwa, relinquished his share in favour of the complainant. Accordingly, share of Tejinder Singh Bajwa was transferred in favour of the complainant. The complainant was not having requisite funds, for making further payment qua the said unit. It is stated that the complainant had also booked another unit in another project ("The Resort') of the OP and sought transfer of the funds qua the said property. As she was not having sufficient funds to make payment of the due installments qua the unit in question and for the same, repeated reminders were sent to her. Ultimately, when the complainant could not make payment of the outstanding dues, the unit booked by complainant in the project namely Celestia Grand', was cancelled on account of non- payment of dues. Since the unit in favour of the complainant was cancelled, she approached the OP and sought transfer of refundable amount upon cancellation to the tune of Rs.10,45,839/- to another allotment existing in her favour, in the project namely 'The Resort'. Ever since the adjustment was done, towards her another booking, in the project 'The Resort'. She was requested again and again, to come forward and get the Agreement to Sell executed and registered in terms of provisions of 'The Real Estate Regulation and Development Act, 2016'. However, despite Issuance of reminders from time to time, the complainant never came forward to get the Agreement to Sell executed and registered in her favour, and has rather filed the complaint in hand, by distorting facts and not coming to this Commission with clean hands, as she has concealed relevant facts from this Commission. It is alleged that the complainant sought transfer of funds, with regard to balance refundable amount in respect of the cancelled unit, towards the property in question, because she was not able to make payment of due amounts qua the unit in question as well, and for the same, OP had already issued various reminders. Denying any deficiency on its part all other allegations made in the complaint have been denied being wrong.
3. Rejoinder was filed and averments made in the consumer complaint were reiterated.
4. Contesting parties led evidence by way of affidavits and documents.
5. We have heard the learned counsel for the contesting parties and gone through the record of the case.
6. It is admitted fact that the complainant has paid an amount of Rs.12,93,186/- as as is evident from Annexure C-6 and also as per Annexure C-8 the complainant has further paid an amount of Rs.1,00,000/- on 7.12.2017. Hence, vide affidavit-cum-undertaking dated 26.8.2017 the complainant prayed for refund of Rs.13,93,186/-. Also Annexure
   R-7 indicates that an amount of Rs.12,93,186/- was adjusted as Rs.10,45,839.37 being the refundable amount to the same for the new/changed property/changed in question in other project of the OP.
7.  Now the point for consideration is whether the complainant is entitled for the refund of the entire amount paid to the OPs or otherwise.
8. Undoubtedly,  the complainant invested her hard earned money from her savings to buy the flat in question but due to negligent and lethargic attitude of the OP, not even a single brick laid by it for the tower NO.4 in which the flat of the complainant was situated. Through her duly sworn affidavit the complainant stated that she  got retired on 30.4.2020 and she could retain her government accommodation till 31.10.2020  only and as such on seeing inability of OP to hand over the possession of the flat in question she requested for the refund of the deposited amount. It is alleged that the OP neither executed any agreement qua the changed flat nor constructed the same and never offer possession to the complainant. Even no demand of money was raised by the OP as it was a construction linked plan and no construction of the said tower  was there at the site. Therefore, due to compelling circumstances the complainant  purchased another flat in Mohali in December 2020 after her retirement.  
9. From the foregoing we  are of the view that the complainant neither got possession of the property in question nor enjoyed her hard earned money which she deposited with the OPs. The Ops nowhere  stated that for what purpose the amount of Rs.2,00,000/-  was deducted from the deposited amount of Rs.12,93,186/-. It is apparent from the document on record that there is no fault on the part of the complainant and as such she should not be punished in form of partial forfeiture of her hard money by the OP. Thus it will meet end of justice if we order to refund the entire deposited amount to the complainant.
10. As far as the quantum of relief is concerned, as per Rule 17 of PAPRA the promoter shall refund full amount collected from the perspective buyer the relevant portion whereof reads as under.

"17. Rate of interest on refund of advance money upon cancellation of agreement. [Sections 6 (2) and 45 (2) (j)]

The promoter shall refund full amount collected from the prospective buyers under sub- section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re- payment."

 

11.  The afore-extracted section Section has to be read in conjunction with Sections 6 (2) and 45 (2) (j) of PAPRA. Rule 6 (2), which reads as under.

"6. Contents of agreement of sale:

(2) The promoter shall not cancel unilaterally the agreement of sale entered into under sub- section (1) and if he has sufficient cause to cancel it, he shall give due notice to the other parties to the agreement and tender a refund of the full amount collected together with interest at the rate as may be prescribed."

 

12. Conjoint reading of these two rules clearly show that the promoter is liable to pay interest @ 12% p.a. under Rule 17 when the promoter unilaterally cancels the agreement of sale and violates rule 6 (2) of the Act. It is, therefore, for this Commission to determine the reasonable compensation to which the Complainant is entitled
13.  The Hon’ble Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, 2022 SCC Online SC 416 held as under:-

“33.At the same time, we are of the opinion that the interest of 9 percent granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the consumer for enhancement of interest.”

 

14. In view of the above, grant of interest @ 9% p.a. shall be proper and justifiable in the facts and circumstances of the case.:
15. In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OP is directed as under:-

1. to pay Rs.13,93,186/- with interest @9% P.A.from the date of deposit till onwards.
2. to pay Rs.20,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

16.      This order be complied with by the OP within 45 days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
17. Pending miscellaneous application(s), if any, also stands disposed off.
18.      Certified copies of this order be sent to the parties free of charge. The file be consigned.

			sd/- [Pawanjit Singh]
			President
			Sd/-
			[Surjeet Kaur] Member   Sd/-
7/2/2024			[Suresh Kumar Sardana]
mp			Member